S. NALINI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The petitioner, a life convict, has filed the above Habeas Corpus Petition seeking to issue a Writ of Habeas Corpus directing the respondents to produce her before this Court and to set her at liberty forthwith.

(2.) The petitioner was one of the accused in the case pertaining to assassination of former Prime Minister of India Shri. Rajiv Gandhi. After trial, by judgment dated 28.01.1998 passed by the Presiding Judge, Designated Court No.1, Poonamallee (Additional City Civil and Sessions Court, Chennai - 600 104), the petitioner along with other co-accused were convicted and awarded sentence of death. Such conviction and sentence imposed on the petitioner and others was confirmed by the Honourable Supreme Court of India on 11.05.1999 in Death Reference Case No.1 of 1998 along with Criminal Appeal Nos. 321 to 325 of 1998. The Mercy Petition submitted by the petitioner and others to the Governor of Tamil Nadu was also rejected on 17.10.1999. Aggrieved by the same, the petitioner, along with others, filed Writ Petition Nos. 17655 to 17658 of 1999 before this Court. This Court, by order dated 25.11.1999, directed the respondents to consider the mercy petition filed by the petitioner and others afresh. Pursuant to such direction, the Governor of Tamil Nadu commuted the death sentence imposed on the petitioner and others into that of imprisonment for life and it was communicated to the petitioner in Letter No.406, Home Department dated 24.04.2000.

(3.) According to the petitioner, she had so far undergone twenty eight years of imprisonment as a Life Convict. After the death sentence imposed on the petitioner was converted into that of a life convict, several life convicts were pre-maturely released by the Governor of Tamil Nadu by exercising his power under Article 161 of The Constitution of India, but she was not given the benefit of premature release purportedly on the ground that the offence committed by her was investigated by the Central Bureau of Investigation. It is the further case of the petitioner that at last on 09.09.2018, the Council of Ministers of the State of Tamil Nadu have advised the Governor of Tamil Nadu to release the petitioner and other convicts, convicted in the assassination of the former Prime Minister of India Shri. Rajiv Gandhi. According to the petitioner, such an advice tendered by the Council of Ministers of the State will bind the Governor, however, the advice given by the Council of Ministers have not been acted upon by the Governor of the State. The Petitioner therefore filed a Writ Petition in WP SR No. 67881 of 2019 in which the Governor of the State was impleaded as a first respondent. By order dated 18.07.2019, this Court rejected WP SR No. 67881 of 2019 on the ground that the Governor of the State is insulated by Article 361 of The Constitution of India and therefore, he cannot be made answerable to the Courts with respect to discharge of his constitutional functions and duties. Thereafter, the petitioner has filed WP No. 14261 of 2019 before this Court for issuing a Writ of Mandamus directing the State of Tamil Nadu to implement the decision of the Council of Ministers dated 09.09.2018 to release the petitioner and others. This writ petition was also dismissed by this Court on 20.08.2019 refusing to issue a Mandamus to the State on the ground that the advice made by the Council of Ministers representing the Government of Tamil Nadu to prematurely release the petitioner and others is pending consideration of the Governor of the State, while so, it cannot be said that the Government have failed to exercise the powers conferred under Article 161 of The Constitution of India.